Published 30th August 2016 | Medical Negligence

How long do I have to make my Medical Negligence Claim?

One of the most common questions we are asked at Osborne Morris and Morgan in relation to medical negligence is “How long do I have to make my medical negligence claim?

How long do I have to make my med neg claim 3

The simplest answer to this is that you have 3 years. But as we know, law is not simple. You need to understand when those three years start and if any of the exceptions apply to you.

As we mentioned in our article ‘7 Things You Need to Know About Making a Clinical Negligence Claim’ , the term “Medical Negligence” refers to a breach of the legal duty of care owed by healthcare professionals, which then results in either physical or mental damage.

The NHS is the largest employer in the UK, in fact, with over 1.3 million staff, it’s the largest employer in Europe and fifth largest in the world. Every day more than 835,000 people visit their GP practice and almost 50,000 people visit accident and emergency departments.

Unfortunately, when dealing with this volume of patients it’s almost inevitable that some mistakes will be made. However, when these avoidable errors end up impacting a patient’s standard of life, we believe help and support should be provided.

It is in these circumstances that making a medical negligence claim for compensation can help.

However, it is important to understand the time factors that apply when making a claim. In this article, we look at how long you have to make your medical negligence claim (the limitation period) when that period starts (the date of knowledge) and the main exceptions to the three year period.

 

Limitation Period – the Law (The Limitation Act 1980)

The Limitation Act 1980 is a statute of limitations which provides timescales within which action may be taken (by issuing a claim form) for breaches of the law.

 

What is a Limitation Period on a Medical Negligence Claim?

In general terms the ‘limitation period’ for most damages claims is six years, in the case of personal injury claims the period is reduced to three years (as set out by section 11 of the act).

The ‘Limitation Period’ for making a medical negligence claim is also three years, the same as a Personal Injury claim.

 

When Does the Limitation Period for a Medical Negligence Claim Start?

The three-year limitation period begins either:

  • From the date of the accident; or
  • From the date that the claimant knew that the injury was linked to the original accident or exposure (whichever is latest) called the “date of knowledge”.

Date of knowledge is defined in the Limitation Act as the date when the claimant became aware that:

  • The injury was significant enough to justify legal proceedings
  • The injury was, at least partially, due to negligent treatment
  • The identity of the defendant

The date of knowledge is often later than the date of the negligence or injury.

For example, with the PIP breast implant scandal (which affected more than 47,000 British women) the implants had been sold across the world from the mid-1990s. However, the issues with the PIP implants did not become public knowledge until March 2010.

Therefore, regardless of when the implants were fitted, March 2010 was the date of knowledge, meaning the deadline for PIP cases to be filed would have been March 2013.

(It is worth noting that some of these cases were put forward as a breach of contract (under the Supply of Goods and Services Act 1982) due to the implants not being of a satisfactory quality or fit for purpose. In these cases, the limitation period could extend to 6 years from the date the PIP implants were put into the body.)

 

Exceptions to the Limitation Period in Medical Negligence Claims

There are a number of exceptions to the three-year rule for medical negligence claims under the limitation period.

The main exceptions to the general three-year rule include:

  • The three-year limitation period starts for children on their 18th birthday, meaning that the period expires on the eve of their 21st birthday.  As a parent, you are still able to make a compensation claim on behalf of your child before he or she is 18 years of age, but the 3 year limitation period does not start until your child turns 18.
  •  For patients treated under the Mental Health Act 1983, the three-year deadline would begin from the date they were discharged as a patient. In severe cases where the patient is never discharged, the three year period may never start to run.
  • If someone dies due to negligence, the three-year time limit runs from the date of their death (even if they are part of the way through dealing with their personal injury compensation claim when they die). This is to allow their family time to continue with the claim.
  • In cases where the injury has occurred outside the UK, the time limit for making a claim may be different, as laws differ from country to country.
  • The court has a wide discretion to extend the limitation period under section 33 of the Limitation Act. However, there tends to be a strict application of the limitation period by the courts in medical negligence cases and it is rarely exercised.

 

Claim Sooner Rather Than Later

It takes time to investigate a claim so it is advisable to start proceedings as soon as possible.  This means the events are fresh in your mind, the relevant documents are easier to obtain and any witnesses are likely to remember more of what happened.

On the other hand, do not assume it is too late to bring a medical negligence claim. Our medical negligence solicitors may be able to help you make a claim, even if the negligence occurred more than three years ago.

 

How We Can Help with Your Medical Negligence Claim

Seeking clear and independent legal advice as early as possible will enable you to make an informed decision about whether you want to make a claim for medical negligence compensation.

Here at Osborne, Morris & Morgan we have recovered more than £143 million in damages for medical negligence clients since 2001, making us nationally recognised as a leading medical negligence firm.

If you have a medical negligence claim, or are unsure and would like to talk to someone about your situation, please call us now on 01525 378177. We can help you see if you have a valid compensation claim, without any obligation to claim with us.

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